In non-international armed conflicts, armed groups are ‘equal in arms’, but not in status: they have the same obligations as states with regard to the conduct of hostilities, as granted by customary international humanitarian law, but their use of force remains strictly prohibited in domestic law. At the same time, the amnesty clause enshrined in the 1977 Additional Protocol II to the Geneva Conventions encourages parties to a NIAC to grant the broadest possible amnesty to persons who have participated in the armed conflict. By inserting this provision in AP II, states recognized that armed groups should be offered a form of ‘combatant immunity’ for participating in hostilities. In doing so, states remained caught in their own state-centric logic by refusing to recognize explicitly, in AP II, the principle of equality of belligerency. This chapter will endeavour to demonstrate that the result of this uncomfortable compromise has led to an unclear rule on amnesties in AP II, – and to go even further, it will contribute to questioning the efficiency of the entire Protocol when it comes to its applicability to armed groups. More generally, the hesitant approach states have adopted in 1977 to regulate armed groups’ behaviour seems to fail to adequately govern the complex reality of contemporary non-international armed conflicts.
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